1995-06

Lawyer may seek appointment of guardian for client under a disability, or take other protective action necessary to advance best interest of client

Lawyer may seek appointment of guardian for client under a disability, or take other protective action necessary to advance best interest of client

QUESTION:

“Through Legal Services Corporation I have agreed to
represent an indigent individual in a Petition to Modify
his Divorce Decree to terminate or reduce his child support
since he is now unemployed. He quit his job due to a
nervous
breakdown and has been hospitalized twice for suicide
attempts. He has stopped seeking psychological counseling
because he is scared of indigent health care systems and
has feelings of paranoia about being watched and/or
investigated.

It has now come to my attention that there in fact is an
ongoing investigation about his alleged sexual abuse of
one of his children two years ago. He has not been allowed
visitation with his children in over a year pursuant to
terms in the divorce decree for this very reason.

Every time I talk to him about any facet of his case he has
a complete emotional breakdown. He cannot handle any stress
right now. I cannot convince him to seek psychological
counseling because of his fear of what might be revealed.

He is so unstable, I do not believe I can proceed with the
Petition to Modify, because I will not be able to get him
through a court proceeding or even the discovery necessary
to prove his case. He has no immediate family that I can
call upon for help.

I have been approached by opposing counsel (who must
represent his client, the ex-wife, who will not consent to
a temporary termination of the court-ordered child support)
saying that he would be willing to allow an in-chambers
presentation to the judge about our dilemma. If I do so I
will be divulging to the judge that the man has a serious
emotional problem that the judge might want me to establish
or he might even order psychological testing to see if my
client can adequately assist me with the case. In either
event, if the man goes to any counselor further evidence
would be revealed about his serious feelings of guilt and
remorse which could be used against him in a criminal
investigation.

I cannot counsel with my client as to which course to take
because he cannot deal with conflict without an emotional
breakdown and I feel this could jeopardize his life, (i.e.
another suicide attempt and/or because he is incapable of
making rational decisions). On the other hand I cannot
leave
him without relief from the Decree of Divorce because the
arrearages would just keep adding up at $911.56 per month.
(He was formerly employed at a very good wage working in an
intensive care unit at a local hospital which caused such a
high child support award).

I am convinced my client’s emotional instability is real
and I have experience and training to make that judgment.

How must I proceed in properly representing my client?

This is of course urgent because a trial date is coming up
in a few weeks and I am further concerned for my client’s
well being.”

ANSWER:

The Alabama Rules of Professional Conduct allow you to seek
appointment of a guardian for your client, or to take any
other protective action if you reasonably believe that your
client cannot adequately act in his own interest. Further,
the rules allow you to disclose such confidential
information as may be required to adequately represent your
client and advance your client’s interest.

Rule 1.14. Alabama Rules of Professional Conduct, states as
follows:

“Rule 1.14 Client Under A Disability

(a) When a client’s ability to make adequately
considered decisions in connection with the
representation is impaired, whether because
of minority, mental disability or for some
other reason, the lawyer shall, as far as
reasonably possible, maintain a normal client-
lawyer relationship with the client.

(b) A lawyer may seek the appointment of a
guardian or take other protective action
with respect to a client, only when the
lawyer reasonably believes that the client
cannot adequately act in the client’s own
interest.”

The Comment portion of Rule 1.14 takes note of the fact
that disclosure of the client’s disability could adversely
affect his interests. The Comment directs that the lawyer
may seek guidance from an appropriate diagnostician in
furtherance of the client’s best interest.

The issue which you face requires consideration of the
obligation of confidentiality, but also requires that you
assess the situation and make a determination as to what
you
feel would be best, under the totality of the
circumstances,
for your client’s interest. In RO-90-67, the Disciplinary
Commission stated that Rule 1.14 “… [R]ecognizes that a
lawyer may, on occasion best serve a client by taking
action
that, on first blush, might appear to be adverse to the
client.”

In RO-95-03, the Disciplinary Commission reasoned that a
lawyer confronted with such a dilemma must determine what
is in the best interest of the client based on the lawyer’s
analysis of all aspects of the situation, including
opinions
of medical experts. The Commission further stated:

“Much of the burden of this decision is
placed on the lawyer who must keep foremost
in his mind the increased standard of
responsibility when dealing with a disabled
client. He must assess all aspects of the
situation, including expert medical opinions,
balancing the client’s ability to communicate
and to appreciate the serious decisions to
be made. If the lawyer has doubts, he should
resolve those doubts in a manner that best
serves his client. The lawyer should also
appreciate the Court’s increased concern in
matters involving lawyers and their repre-
sentation of incompetent clients. ‘The normal
limitations on a lawyer’s self-enrichment at
the expense of a client are applied with
enhanced strictness when the client is a child
or otherwise not capable of making fully
informed and voluntary decisions.’ Wolfram,
supra, p.159.”

Hazard and Hodes, in their treatise The Law of Lawyering,
deal with Rule 1.14 and give an illustrative case wherein a
lawyer is representing a criminal defendant with diminished
capacity. Hazard and Hodes determined that the lawyer acts
properly in urging his client, who has diminished capacity,
to accept a plea bargain offered by the prosecution and to
waive a possible insanity defense, even though it would
mean
a conviction on the client’s record and a short jail term.
Hazard and Hodes conclude that the lawyer may judge that
his client’s long term best interest would be best served
by accepting a short jail term rather than an indeterminate
stay in a mental institution. Hazard and Hodes feel that
in close cases, the lawyer “cannot be disciplined for any
action that has a reasonable basis and arguably is in his
client’s best interests”. Section 1.14: 201

Finally, Rule 1.6, Alabama Rules of Professional Conduct,
deals with “confidentiality of information”. Subsection (b)
of Rule 1.6 allows disclosure of information by a lawyer
which is otherwise confidential if the lawyer reasonably
believes disclosure is necessary to prevent the client from
committing a criminal act which the lawyer believes is
likely to result in imminent death or substantial bodily
harm. The Comment provision to Rule 1.6 allows that the
lawyer has professional discretion to reveal information
in order to prevent such consequences. Therefore, if you
determine that the best interest of your client would be
served by making disclosure to the court of your client’s
condition, and the possibility that he might harm himself,
and that protective measures should be taken to prevent
such
harm, the Rule would allow such. In conjunction with Rule
1.14, if you make this determination, then you could seek
appointment of a legal representative for your client to
further protect your client’s interest.

There is no definitive standard which can be applied in
such a situation to guarantee the best result. The rules
are fashioned to allow the lawyer to analyze the client’s
emotional state, and the interest to be advanced by the
lawyer on behalf of the client, and then pursue whatever
action the lawyer deems best under obviously difficult
circumstances. Once the lawyer has determined what he
feels to be the proper course of action to best serve his
client, the rules allow the lawyer to do what is necessary
to advance the interest of the client, while, at the same
time, insuring protection of the client and his well being.